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DEVELOPMENT, NATURE AND DHARMA

J. Sai Deepak

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A few days ago, Uttarakhand witnessed yet another flood and I am not sure I want to call it a “natural disaster” which could give the impression that it wasn’t caused by human activity. Since I am no expert on the subject, let’s just say that it may or may not have been caused by human activity and until the experts give an opinion, I am not willing to rule out the real possibility that human activity was responsible for it. As usual, social media was agog with feverish activity and opinions were being churned out by netizens by the second. Within a matter of minutes of the news of the flood breaking out, the debate predictably turned political. Sure, nine out of ten times one cannot expect political parties to look beyond politics and I accept that as the reality of the times we live in. I don’t say this from a position of cynicism, I am just stating the situation for what it is. However, what was disconcerting was that even members of the public, instead of going beyond politics on a subject that involves nature, were comfortable limiting the scope of their enlightened and informed debates to politics on platforms that have no love lost for nuance.

I use disconcerting and not surprising because the unfortunate reality is that politics has become the lens through which every issue, regardless of the seriousness it deserves, is analysed. I also realized that environment/nature is perhaps among the most heavily politicized of topics given that it has a bearing on “development” and “economy”. Any discussion on the balance to be struck between “development” and respect for “nature”, the fashionably coined “sustainable development”, affects a lot of pockets at several levels. Therefore, given the propensity for conflict of interest, it would be naïve to not expect the debate around nature to not turn political and personal. However, for a land which has been associated with rivers, forests, floral and faunal diversity, so much so that this was the image of Bharat in the European colonizer’s popular and stereotypical representation barely 127 years ago in Rudyard Kipling’s The Jungle Book, it is indeed tragic that Bharat unfailingly witnesses “natural disasters” almost every year for causes which are not entirely “natural”.

To not revisit our approach to “development” despite annual and increasingly deadly reminders and warnings by nature would be, dare I say, monumentally myopic and foolish. Such an attitude only puts on stark display the humungous size of the human ego which has been inflated owing to the adoption of the European colonizer’s Cartesian dualist approach to the relationship between humans and nature. In this regard, here’s an extract from the 36th piece under this column, titled “Indigeneity, land ontologies and ‘development’”, wherein I wrote thus:

“I had ended the last piece on the note that one of the fundamental distinctions between the European colonizer and indigenous peoples who were colonized was the difference in their land ontologies. In the case of the former, his Christian Onto-epistemological and theological (OET) framework informed his land ontology whereas a spiritual land ethic, scholars believe, shaped the very OET of most indigenous societies. The nexus between the subject-object cartesian dualism of the colonizer’s OET and the Lockean position on ownership of land/creation of a proprietorial interest in land is not that difficult a connection to draw. In stark contrast, most indigenous societies, until afflicted by “modernity” owing to the European colonizer’s advent, shared a sacred and harmonious relationship with nature which was not seen merely as an object of conquest and possession. It is this distinction in attitudes that brings out in stark relief the devastating impact that universalizing Europeanism has had on nature across the world.

That the colonial attitude towards nature has a direct bearing on metrics of “development” is supported by several scholars of coloniality. A colonialized and hence homogenised approach to development has resulted in every society aspiring for the same way and quality of life regardless of its local conditions. Hypothetically speaking, it is as good or as bad as Uttarakhand, an eco-sensitive zone, aspiring for the same degree of road connectivity and “infrastructure” as Delhi notwithstanding the environmental impact of ceaseless “developmental” activity on its fragile ecological balance.”

Let me clarify that this is certainly not my “I told you so” moment given that the lives of millions of people are involved and the future of an entire ecosystem, I mean the natural ecosystem and not an ideological ecosystem, is at stake. All I am saying is given that Bharat has so many mouths to feed and it is not exactly flush with resources to feed everyone, more than any other country, it is for Bharat to ask itself as to how it wishes to define “development” and whether it is possible for Bharat to sustain the model of “sustainable development” which is followed by the West. Again, the idea is not to reject anything good that may come from any part of the world, but every idea needs to be tested on the anvils of local validity, especially natural and cultural, instead of buying into universalized Eurocentric/Western notions of development. Critically, the more Bharat subscribes to the Left-Right binary which pushes environmentalism in the basket of the Left and development in the basket of the Right, it is bound to find itself with limited options to deal with its unique realities given the adversarial, antagonistic and schismatic pitting of environment and development. To paraphrase decolonial thought in this regard, problems caused by Eurocentrism, including in matters of nature and development, cannot be addressed by Eurocentric solutions. The breakout strategy then, is to think local and put faith in the received wisdom of indigenous communities which have nurtured nature for millennia, and paying heed to them even if they do not pass muster on our contrived and colonially imposed anvils of “modernity” and its attendant trappings.

I am alive to the fact that Bharat’s realities require a considered position that takes into account several geo-political, economic and strategic factors given that it is situated in perhaps among the most volatile and hostile of regions in the world. That said, if not for any other reason, purely from a mercantile perspective, since the economic cost of a complete breakdown of ecology could be exorbitant, unpayable, irreversible and irreparable, Bharat has no other option but to look for guidance from its own vast reservoir of indigenous thought on respect for nature before it is too late. After all, respect for nature is one of the most integral and indispensable layers of Dharma.

If these views invite labels which are intended to be pejorative such as “tree hugger”, so be it; I embrace them all. I’d rather attempt to be Dharmic and fail originally than blindly ape Western thought and succeed spectacularly as a shallow and cheap mimic. In any case, I subscribe to Dharmic thought which declares without reservation thus- “यतः कृष्णस्ततो धर्मो यतो धर्मस्ततो जयः”.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

Exception of customary divorce under Hindu Marriage Act not attracted in absence of declaration from civil court regarding its validity: Calcutta High Court

The sum and substance of this judgement is that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognised by custom to obtain the dissolution of a Hindu marriage.

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In a recent, remarkable, righteous and rational decision titled Smt. Krishna Veni Vs The Union of India and others in WPA No. 2346 of 2018 delivered on February 18, 2021, the single Judge Bench of Justice Sabyasachi Bhattacharyya has held that merely obtaining a customary divorce will not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It has been made absolutely clear that the validity of such a divorce has to be established by a deed of declaration. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is put forth that, “The present challenge has been preferred by Smt. Krishna Veni, the second wife of Sardar Natha Singh (since deceased), who was a freedom fighter getting pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise on August 25, 1984. The petitioner, relying on a deed of declaration of divorce, purportedly executed by respondent no.11, the first wife and Sardar Natha Singh, the husband of the petitioner, claimed widow pension under the said Scheme, which was refused by a communication dated March 6, 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19, 1956 was not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.”

To put things in perspective, it is then laid down in para 10 that, “For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage. In the present case, the petitioner did not approach the civil court for declaration regarding validity of the divorce deed.”

As it turned out, the Bench then states in para 11 that, “There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.”

Needless to say, it is then stated in para 12 that, “Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general. Admittedly, the petitioner, respondent no.11 and their deceased husband are/were Sikhs by religion. Hence, the marriage between the respondent no.11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.”

Be it noted, it is then pointed out in para 13 that, “. In order to justify an exception to Section 13 within the purview of Section 29(2), the petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between the respondent no.11 and her deceased husband was recognized by custom. All Sikhs do not come within the purview of such exception, unless any custom to the contrary is proved by cogent evidence. The respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done by adduction of adequate evidence before a civil court. Unfortunately, neither does the writ court, with its constraints in taking evidence on disputed questions of fact, has the scope to decide such issue.”

While elaborating further along with the relevant case law, it is then envisaged in para 14 that, “In Gurdit Singh (supra), the Supreme Court was dealing with an issue which arose in a civil suit. The trial court had decreed the marriage-in-question to be valid. The appellate court reversed such decree on the premise that the marriage between the parties was invalid, being not justified by any custom. Upon the issue being remitted to the trial court, after giving the parties an opportunity to lead further evidence, the trial court answered the issue regarding the existence of such custom in the negative, which was endorsed by the appellate court. In second appeal, the High Court held that a custom was proved under which Mst. Angrez Kaur, respondent could validly marry Sunder Singh, even though her first husband was alive. While considering such matter, the Supreme Court observed that the witnesses examined on behalf of the appellant had admitted the existence of a custom permitting the Hindu husband to divorce his wife. Upon such premise, the Supreme Court proceeded to endorse such view.”

While citing yet another relevant case law, the Bench then observes in para 15 that, “ In Balwinder Singh (supra), the matter in issue before the Supreme Court also arose from a civil suit, wherein the trial court declared the marriage solemnized between the parties in accordance with Hindu rites and ceremony as null and void and granted a decree of nullity of marriage. The appellate court had found that the evidence adduced by the appellant was not sufficient and reliable enough to establish the existence of the custom amongst the Sikhs Jats of District Amritsar to which District the appellant and its parents belonged, under which the marriage between the appellant and his previous wife could be dissolved otherwise than through court as per the provisions of the Hindu Marriage Act.”

It would be pertinent to mention that it is then stated in para 16 that, “While dealing with such question, the Delhi High Court considered the evidence adduced by the parties and sanctioned the dissolution of marriage by execution of a deed of divorce.”

Simply put, it is then mentioned in para 17 that, “The Andhra Pradesh High Court, in Doddi Appa Rao (supra), was also considering a case where a civil court had decreed a suit for declaration that the marriage of the plaintiff and the defendant therein was dissolved as per caste custom and usage. In such context, it was held by the Division Bench of the Andhra Pradesh High Court that the Central Administrative Tribunal ought to have honoured such decree.”

It would be useful to also note that it is then specified in para 18 that, “In G. Thimma Reddy (supra), the learned Single Judge considered several factors apart from the registered deed of divorce, including that the factum of divorce was disregarded on a flimsy ground that the stamp affixed to the document of divorce was in the name of a wrong person. The court also took into consideration the fact that the spouses were living separately and in possession of lands settled in their favour, for which no need for divorce was there. Oral evidence was also adduced by several witnesses, one of them a caste elder who had also attested the document. P.Ws 1 to 3 therein spoke of existing custom in the caste of the spouses sanctioning such divorce. Moreover, the adjudication in the said report was in the context of a land dispute between the parties.”

As a corollary, it is then pointed out in para 19 that, “As such, in each of the judgments cited by the petitioner, a valid decree, sectioning the respective documents of divorce, had been passed by competent civil courts. In the present case, however, no such decree was obtained by the petitioner.”

In addition, it is then also brought out in para 20 that, “That apart, it is pleaded by the writ petitioner herself that the Government of India, Ministry of Home Affairs, New Delhi, sanctioned payment of political pension to the first wife, that is, respondent no.11 with effect from August 26, 1984 by a letter dated February 14, 1986 and Pension Payment Order was issued accordingly in favour of respondent no.11. For whatever reason such pension might have been withheld subsequently, the initial grant of pension to respondent no. 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.”

Perhaps more crucially, it is then elaborated in para 21 that, “It is relevant to mention here that a suit-in-question was filed by respondent no.11, inter alia, for declaration that she was the only married wife and the only widow of Sardar Natha Singh (since deceased) and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh. Learned counsel for the petitioner argues that the said suit was dismissed for default and the subsequent restoration application filed by respondent no.11 met with the same fate. As such, it is contended that respondent no.11 is debarred from raising the contentions on which declaration was sought by her in the dismissed suit.”

To state the obvious, the Bench then notes in para 22 that, “Order IX Rule 9 of the Code of Civil Procedure debars a plaintiff from bringing a fresh suit in respect of the same cause of action in the event of dismissal of a suit for default. However, it is well-settled that such a dismissal, ipso facto, would not take away the right of the plaintiff which was under consideration in the suit. Such right, if available otherwise to the plaintiff in accordance with law, subsists despite the dismissal of the suit for default. The plaintiff in such a suit may very well raise a defence on the basis of such right in a different suit or legal action and/or may agitate the same right in a suit filed by her on a subsequent cause of action.”

Of course, it is then rightly stated in para 23 that, “Thus, in the present case, the dismissal of the suit of respondent no.11 for default does not preclude the said respondent from staking her claim before any authority other than a civil court, that too in a suit filed by her on the self-same cause of action, and/or setting up a defence in the writ petition on the basis of such claim.”

Most significantly, it is then aptly observed in para 24 that, “In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.”

What’s more, it is then also pointed out in para 25 that, “Such facts, coupled with the fact that pension was granted earlier in favour of respondent no.11 upon a valid sanction being issued by the respondent-authorities, it would be unjust to deprive respondent no.11 from such pension at the behest of the petitioner, merely on the basis of the petitioner’s assertion on oath in this writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent no.11 and her deceased husband.”

As was anticipated, the Bench then goes on to add in para 26 that, “ I must note that, in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent no.11. However, such a course of action would be grossly illegal. Although my empathy goes fully with the petitioner, who is an unemployed lady of about 63 years as per her own affidavit, this court does not have the power to enact law but is bound by the provisions of law as the Parliament, in its wisdom, chose to promulgate. Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.”

Now coming to the concluding paras. It is held in para 27 that, “In such view of the matter, the writ petition fails. Accordingly, WPA No.2346 of 2018 is dismissed on contest without any order as to costs.” Finally, it is then held in the last para 28 that, “Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.”

To conclude, the sum and substance of this noteworthy judgment is that that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom to obtain the dissolution of a Hindu marriage. Very rightly so!

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Legally Speaking

REFUSAL TO GIVE TEA NOT SUDDEN OR GRAVE PROVOCATION: BOMBAY HC

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In an enduring, empowering, enlightening, enriching and encouraging judgment for women titled Santosh Mahadev Atkar vs The State of Maharashtra in Criminal Appeal No. 544 of 2019 delivered recently on February 2, 2021, the Bombay High Court has observed that the medieval notion of the wife being the ‘property of the husband to do as he wishes, still persists’. The Bombay High Court thus refused to show any leniency to a man convicted for culpable homicide not amounting to murder. A single Judge Bench of Justice Revati Mohite Dere held clearly, cogently and convincingly that the husband’s contention that his wife, by refusing to make tea, offered a grave and sudden provocation to be “ludicrous”, “clearly untenable and unsustainable”. It must be mentioned here categorically, clearly and cogently that the wife, struck by her husband with a hammer for suspecting her character and refusing to make tea had eventually succumbed to her injuries.

To start with, the ball is set rolling in para 2 of this learned, latest, laudable and landmark judgment by first and foremost observing that, “The appellant has impugned the judgment and order dated 1st July 2016 passed by the learned Additional Sessions Judge, Pandharpur in Sessions Case No. 13/2014, convicting and sentencing the appellant as under :

– for the offence punishable under 304, Part II of the Indian Penal Code, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default of payment of fine, to suffer simple imprisonment for 6 months;

– for the offence punishable under Section 201 of the Indian Penal Code, to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.3,000/-, in default of payment of fine, to suffer simple imprisonment for 3 months.

Both the aforesaid sentences were directed to run concurrently.”

To put things in perspective, it is then stated in para 3 while elaborating on the facts of the case that, “A few facts as are necessary to decide the case are as under :

The appellant is the husband, who was married to Manisha (deceased) on 15th December 2005. From the said wedlock, the appellant and Manisha were blessed with a daughter-Rohini. The appellant and Manisha were residing in the Servants’ Quarters of Vitthal Hospital at Pandharpur along with the appellant’s mother, who was serving in the said Hospital. According to the prosecution, the appellant was suspecting Manisha’s character, as a result of which, there used to be frequent quarrels between them. The incident is stated to have taken place on 19th December 2013 at about 6:00 a.m. It is the prosecution case that Manisha was leaving the house on the said date and time, without preparing tea, on account of which, there was exchange of words between the appellant and deceased Manisha. As the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, the appellant is alleged to have given a blow on Manisha’s head from behind, with a hammer. The said incident is alleged to have been witnessed by Rohini (appellant and Manisha’s daughter), who, at the relevant time, was aged 6 years. It is the prosecution case that soon after Manisha was assaulted, the appellant gave her a bath, wiped the blood-stains from the spot and thereafter took Manisha to Vitthal Hospital. As Manisha’s condition was critical, the doctor who treated Manisha asked the appellant to shift Manisha to the Civil Hospital, Solapur. Pursuant thereto, Manisha was shifted to the Civil Hospital, Solapur. Throughout, Manisha’s condition was critical and she was unable to speak and eventually on 25th December 2013, Manisha succumbed to her injury.

In the meantime, i.e. on 19th December 2013, Manisha’s uncle Macchindra Waghmare (PW 4), on learning that Manisha was admitted to the hospital, immediately rushed to the hospital i.e. Vitthal Hospital, where the appellant informed Macchindra that he had assaulted Manisha. Pursuant thereto, Macchindra Waghmare (PW 4) lodged a complaint with the Pandharpur Police Station. On registration of the FIR, investigation commenced, statements of witnesses were recorded, panchanamas were drawn and after investigation, charge-sheet was filed as against the appellant for the offence punishable under Section 302 and 201 of the Indian Penal Code, in the Court of the learned Magistrate at Pandharpur.

The said offence being Sessions triable, the case was committed to the Court of Sessions at Pandharpur. Charge was framed against the appellant for the aforesaid offence, to which, the appellant pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined 12 witnesses. Thereafter, Section 313 statement of the appellant was recorded. The learned Judge, after hearing the parties, was pleased to convict the appellant for the offence as stated in para 2 hereinabove.”

As it turned out, after hearing both the parties, Justice Revati then observed in para 6 that, “Perused the papers. Having heard learned counsel for the appellant and the learned A.P.P at length and after considering the submissions canvassed by them and after perusing the evidence on record, I am of the opinion that no interference is warranted in the impugned judgment and order, for the reasons set-out hereunder; As noted above, the prosecution allegation as against the appellant is that the appellant would suspect the character of his wifeManisha. The said fact is borne out from the evidence of PW 4- Macchindra (Manisha’s uncle, who is the first informant in the said case) as well as the evidence of PW 6-Nandabai (Manisha’s mother). Both the said witnesses have categorically in their evidence stated about the ill-treatment meted out by the appellant to Manisha i.e. of suspecting her character and of physical assault. The incident in question is alleged to have taken place on 19th December 2013 at about 6:00 a.m. at the Servants’ Quarter, where the appellant was staying with Manisha and their daughter Rohini. The said Servants’ Quarter belonged to the appellant’s mother, who was working in the hospital. It is not in dispute that at the relevant time, the appellant’s mother was not present in the house. As noted above, there is also an extra-judicial confession made by the appellant to PW 4- Macchindra, PW 6-Nandabai and PW 7-Dr. Dhotre (Medical Officer at Vitthal Hospital, Pandharpur).”

To be sure, it is then stated in para 7 that, “Coming to the evidence on record with respect to ill-treatment meted out by the applicant to Manisha and the extra-judicial confession made by the applicant, the relevant witnesses in this regard are PW 4- Macchindra and PW 6-Nandabai. As far as PW 4-Macchindra’s evidence is concerned, he has stated that deceased-Manisha was his niece; that she was married to the appellant on 15th December 2005; that they were living in a Servants’ Quarter of Vitthal Hospital for about 3 years prior to the incident; that Rohini (appellant and Manisha’s daughter) was also residing with them; that the appellant was suspecting Manisha’s character and would quarrel with her on account of the same and that on 19th December 2013, the appellant assaulted Manisha on her head, resulting in serious injuries, pursuant to which, the appellant admitted Manisha to Vitthal Hospital. PW 4-Macchindra has further stated that Manisha was shifted from Vitthal Hospital to Civil Hospital, as she was seriously injured. He has stated that Manisha was unconscious and had sustained injuries on her head. He has further stated that when he questioned the appellant as to what had happened, the appellant disclosed to him that at 6:00 a.m, he had asked Manisha to prepare tea and that when she refused to prepare tea, he assaulted her with a hammer on her head, pursuant to which, he brought her to the Civil Hospital. PW 4-Macchindra, on the basis of the said disclosure made by the appellant, lodged a complaint/FIR, as against the appellant with the Pandharpur Police Station. The said FIR is at Exhibit-23. Although several suggestions were made to the said witness, nothing is elicited in his cross-examination to disbelieve the said witness. A suggestion was also made to the said witness that the deceased fell, as a result of which, she sustained an injury on her head, which suggestion was denied by the witness. It was also brought on record that the appellant had filed a complaint against the said witness and Manisha’s parents in 2010, as a result of which, they were falsely implicating him in the said case, which suggestion was also denied by the said witness.”

Be it noted, it is then enunciated in para 8 that, “The evidence of PW 6-Nandabai (Manisha’s mother) is similar to the evidence of PW 4-Macchindra with respect to the ill-treatment meted out by the appellant to her daughter-Manisha i.e. the appellant used to suspect Manisha’s character; would quarrel with her and also assault her. PW 6-Nandabai has stated that when she, along with others, visited the Civil Hospital, Solapur, they learnt that Manisha was serious; that she was not opening her eyes nor could she talk. She has stated that when she asked the appellant what had happened, the appellant disclosed that in the morning at 6:00 a.m, as Manisha had not given him tea and as he suspected her character, he hit her on her head, resulting in Manisha sustaining an injury. Again, nothing material is brought in the cross-examination, so as to disbelieve or discredit this witness. The suggestions made to the said witness i.e. PW 6-Nandabai have been categorically denied by her i.e. that Manisha was injured in an accident; that no such disclosure was made by the appellant to her; and that they had lodged a false complaint against him because of an earlier complaint lodged by the appellant against them in 2010. Thus, from the evidence on record, it is evident that the appellant would suspect Manisha’s character and that the appellant had made an extra-judicial confession to PW 4-Macchindra and PW 6-Nandabai that he had assaulted Manisha.”

It is also really worth noting that it is then observed in para 9 that, “It is pertinent to note that the evidence of both the aforesaid witnesses i.e. PW 4-Macchindra and PW 6-Nandabai is, duly corroborated by an independent witness i.e. PW 7- Dr. Bajrang Dhotre.

PW 7- Dr. Dhotre was working as a Medical Officer at Vitthal Hospital, Pandharpur at the relevant time. He has stated that on 19th December 2013 at about 7:00 a.m., Manisha was admitted in the hospital; that when he examined her, he found that she was in a serious condition, as she had suffered heavy bleeding. He had stated that the said patient was brought by Santosh Atkar (appellant). He has further stated that the appellant informed him i.e. gave history that he had hit Manisha at 6:30 a.m. in the morning with a hammer at the residential quarters of Vitthal Hospital. PW 7-Dr. Dhotre has stated that the said history given by the appellant was reduced into writing by him in the appellant’s words. PW 7-Dr. Dhotre has identified his handwriting on the case papers which are exhibited at Exhibit-28. Exhibit 28 i.e. case papers of Manisha read as under :

“Patient brought by Mr. Santosh Mahadeo Aatkar c alleged history an assault, he hited by hammer (हातोडा), today morning at about 6:30 A.M.; at Vitthal Hospital residence quarters.”

PW 7- Dr. Dhotre found the following injuries on Manisha :

i) C.L.W. measuring 4 Cms. X 3.5 Cms., oozing of blood was present. It was present at left parietal region, 5 Cms. away from the midline, and was placed anterio posteriorely. On clinical examination it was depressed fracture of skull.

ii) C.L.W. measuring 3 X 1 Cm. was vertical in direction, was muscle deep and blood mark was present. It was situated at medial aspect of left forearm in its lower 1/3rd part.

iii) C.L.W. measuring 2 X 0.5 Cm. was vertical in direction, and blood mark was present, and was at medial to injury No.2 and it was parallel to it.

iv) C.L.W. measuring 1 X 0.5 Cm. was horizontal in direction, and blood mark was present and was at dorsum of left little finger on its terminal part of 1st digit.

v) Haematoma measuring 5 X 3 Cms. was tender and was at dorsum of right hand.

vi) Abrasion 2 X 1 Cm. was read in colour and was at right patellor region. It is simple in nature.

All injuries are within 6 hours old. Injury Nos. 1, 2, 3, 4 was caused by hard and blunt and hard and rough object. Injury Nos. 5 and 6 are caused by hard and rough object.”

PW 7-Dr. Dhotre advised CT-Scan of the patient-Manisha and asked her to be shifted to a higher center for further treatment, pursuant to which, Manisha was taken to the Civil Hospital at Solapur. Thus, the extrajudicial confession made by the appellant to PW 4-Macchindra and PW 6- Nandabai is duly corroborated by PW 7-Dr. Dhotre and is supported by Exhibit 28 i.e. the case papers. It appears that after Manisha was shifted to the Civil Hospital at Solapur, efforts were made by the police to record her statement, however, she was not found in a condition to record her statement. On 25th December 2013, Manisha succumbed to her injuries. The cause of death was stated to be head injury. Column 19 of the postmortem report reveals the following internal injuries :

“(i) Underscalp haematoma present over left side fronto parieto tempora occipital region size 13 cm x 7 cm;

(ii) Comminuted depressed fracture of left parietal bone of size 4 cm x 3.5 cm;

(iii) – Extradural haematoma present over left parietal region about 50 gms,

– Subdural haematoma present all over brain about 100 gms;

– Subarachnoid haemorrhage present all over brain surface as think blood film,

– Meninges torn,

– Brain congested & ocetomatovy.””

Needless to say, it is then stated in para 10 that, “Thus, it appears that the appellant assaulted Manisha on her head with a hammer from behind, resulting in a grievous injury on the head and other injuries on her person. The situs of injury is consistent with the evidence on record.”

As we see, Justice Revati then mentions in para 14 that, “Learned counsel for the appellant relied on the judgment of the Apex Court in the case of Madanlal vs. State of Punjab [1992 Supp (2) SCC 233] . He submitted that in the said case, the accused was convicted for the offence under Section 304 Part (II) of the Indian Penal Code and was sentenced to suffer imprisonment of 4 years. He submitted that as the accused’s act was a result of grave and sudden provocation, his sentence was reduced to the period undergone. According to the learned counsel for the appellant, since the appellant in the present case, acted under grave and sudden provocation, the appellant’s sentence also be reduced to the period undergone by him.”

More appropriately, Justice Revati then while making the right reasoning points out in para 15 that, “A perusal of the said judgment relied upon by the learned counsel is clearly distinguishable and has no bearing on the facts in the present case. The case before the Apex Court was that the appellant therein, had caused serious injury to the deceased with a handle of a pump; the motive of the crime was that the accused therein was hungry for 3 days and when he asked for food from the deceased Sewadar of the `Dera’ where free food was being supplied, the deceased refused and consequently, the appellant, in a fit of anger, attacked the deceased on being deprived of the power of self control. Admittedly, in that case, the appellant and the deceased were not known to each other and the motive was hunger for 3 days. In the present case, the appellant was suspecting his wife’s character and would assault her on account of the same. On the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer. The deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Most significantly and most remarkably, what forms the cornerstone and bedrock of this judgment is then waxed eloquently, elegantly and effectively as stated in para 16 that, “It would not be out of place to observe that a wife is not a chattel or an object. Marriage ideally is a partnership based on equality. More often than not, it is far from that. Cases such as these, are not uncommon. Such cases, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship. There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores. Emotional labour in a marriage is also expected to be done by the wife. Coupled with these imbalances in the equation, is the imbalance of expectation and subjugation. Social conditions of women also make them handover themselves to their spouses. Thus, men, in such cases, consider themselves as primary partners and their wives, `chattel’. To quote from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has the further implication, possibly peculiar to the human case, of a sense of right or entitlement”.

This medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy. Thus, the submission of the learned counsel for the appellant that the deceased by refusing to make tea for the appellant offered grave and sudden provocation, is ludicrous, clearly untenable and unsustainable and as such deserves to be rejected. In the facts, the appellant not only assaulted his wife, but also after assaulting her, wasted precious and crucial time i.e. around one hour, in covering his act by destroying evidence, by wiping the blood from the spot and bathing Manisha before taking her to the hospital. If the appellant had rushed Manisha to the hospital, soon after the incident, possibly her life could have been saved and Rohini would not have lost her mother.”

Finally and as a corollary, it is then stated by Justice Revati in para 17 that, “Considering the overwhelming evidence on record pointing to the complicity, no infirmity can be found in the impugned judgment and order convicting and sentencing the appellant for the offences mentioned in para 2 hereinabove. The facts on record also do not warrant any reduction in the sentence awarded to the appellant. Accordingly, the appeal is dismissed.”

On an unflattering note, it must be stated quite uprightly that Justice Revati Mohite Dere has written a very bold, brilliant, brief, balanced and blunt judgment which makes it absolutely clear in no uncertain terms that violence by a husband against her wife cannot be justified on the pretext of grave and sudden provocation as cited here which simply does not hold any water! This alone explains why Justice Revati has rightly termed in her 19-page order that the husband’s contention that his wife by refusing to make tea offered a grave and sudden provocation was “ludicrous”, “clearly untenable and unsustainable”. Very rightly so! It is a worth emulating judgment in similar such cases!

Sanjeev Sirohi, Advocate,

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SEDITION: DISAFFECTION VS DISAPPROBATION

J. Sai Deepak

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In my last piece, I had started a discussion on Section 124A of the IPC which deals with sedition. I had broadly set out the history of the provision, including its original language in 1870 and the amendments undertaken in 1898 and thereafter, leading to the provision as it stands today. In this piece, I will discuss a few landmark judgements which were delivered before the Constitution came into force on January 26, 1950 to understand the treatment of the provision by British Indian Courts.

The first such judgement is Queen-Empress vs Jogendra Chunder Bose And Ors. (1891) delivered by the Calcutta High Court at a time when the provision read as under:

124A. EXCITING DISAFFECTION

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which, fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation-Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.

A reading of the provision makes it clear that it struck a distinction between exciting feelings of “disaffection” on the one hand, and “disapprobation” of the measures of the Government on the other. According to the Calcutta High Court in 1891, the former referred to a challenge to the lawful authority of the government whereas the latter referred to disapproval of the Government’s measures without calling for disobedience to the authority of the government. Therefore, words, written or spoken, or signs or any form of visible representation which were intended to excite feelings of disaffection towards the government, which were distinct from merely disapprobation or disapproval of the government’s measures, attracted the provision. Mere intention to create disaffection as deciphered from the written or spoken word or visible representation was sufficient, without the need for that intention to have achieved fruition. Following are the relevant extracts from the judgement:

“If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling. The second question for you, gentlemen of the Jury, then, will be whether, upon the evidence before you, you think that the articles circulated by the prisoners were calculated to create such feelings in the minds of their readers, and if so, whether they intended to create such feeling by their circulation.”

Subsequently, in Queen-Empress v. Amba Prasad (1897), on the meaning of “disaffection” and contrasting it with “disapprobation”, the Bombay High Court reiterated as follows the earlier judgement of the Calcutta High Court:

“It (disaffection) means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. ‘Disloyalty’ is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite: he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial, except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question.

.. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion, or outbreak or forcible resistance to the authority of the Government, still, if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section.

It (the provision) does not apply to any writing which consists not merely of comments upon Government measures, but of attacks upon the Government itself. It would apply to any criticisms of legislative enactments, such as the Epidemic Diseases Act, or any particular tax, or of administrative measures, such as the steps taken by the Government for the suppression of plague or famine. But if you come to the conclusion that these writings are an attack, not merely upon such measures as these, but upon the Government itself, its existence, its essential characteristics, its motives or its feelings towards the people, then you must put aside the explanation altogether and apply the first clause of the section.

What is the meaning of ‘disapprobation’ of Government measures as contrasted with ‘disaffection’ to the Government? I agree with Sir Comer Petheram that while disaffection means the absence of affection, or enmity, disapprobation means simply disapproval; and that it is quite possible to like or be loyal to anyone, whether an individual or a Government, and at the same time to disapprove strongly of his or its measures. This distinction is the essence of the section. It shows clearly what a public speaker or writer may do, and what he may not do. A man may criticise or comment upon any measure or act of the Government, whether legislative or executive, and freely express his opinion upon it. He may discuss the Income-Tax Act, the Epidemic Diseases Act, or any military expedition, or the suppression of plague or famine, or the administration of justice. He may express the strongest condemnation of such measures and he may do so severely, and even unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers,–as, for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people-then he is guilty under the section, and the explanation will not save him.

To come within the protection of the explanation, a writing must not only be the making of comments on Government measures with the intention of exciting only disapprobation of them as distinguished from disaffection to the Government, but the disapprobation must be ‘compatible’ with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority.”

This position was endorsed in subsequent cases. However, to clarify the scope of the provision as well as the exceptions carved out in the explanation, the provision was amended as follows in 1898 and the word sedition was used in title for the first time:

124A. SEDITION

Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.–The expression ‘disaffection’ includes disloyalty and all feelings of enmity.

Explanation 2.–Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.–Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section

In the next piece, I will discuss the debates in the Constituent Assembly relating to “sedition”.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Enka Insaat vs Chubb: What UK Supreme Court affirmed?

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INTRODUCTION

The five-judge bench of UK Supreme Court on 9 October 2020 pronounced a landmark judgment in Enka Insaat Vs Sanayi AS vs OOO Insurance Company Chubb [2020] UKSC 38, which is considered to be a leading authority in the arbitration regime on the governing law of arbitration agreements and the role of the courts of the seat in granting anti-suit relief.

FACTS

The claimant (“Enka”) is a Turkish company carrying on an international construction and engineering business based in Turkey but with a substantial presence and history of operations in Russia whereas the First Defendant (“Chubb Russia”) is a Russian company and part of the well-known Chubb insurance group. In the present case Enka was one of the subcontractors amongst others providing services in connection with a power plant for the Defendant (“Chubb Russia”).

On 1st February 2016 a severe fire caused massive damage to the plant. The owner, Unipro, claimed from its insurer, Chubb (in this case). In May 2019 Chubb Russia commenced proceedings against Enka and 10 other parties in the Russia (“Russian Proceedings” in Arbitrazh Court), seeking damages in relation to a massive fire in February 2016 at the power plant in Russia. However, over this claim, Chubb Russia asserted that “the accident was caused by defects (deficiencies) in the design, structures, fabrication and installation of the [power plant] including fuel oil pipelines”. To all this, Enka asserted that it had no liability and could have no liability, on the basis that in November 2014 the works which were alleged to have caused the fire had been excluded from the scope of works to be performed by Enka and had subsequently been performed by another contractor.

On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russia’s claim against it dismissed (or “left without consideration”) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russia’s obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. It was well argued and contended by Enka that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. Interestingly after some hearings, the judge in the Russian proceedings announced her decisions (a) not to grant Enka’s motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russia’s claims against all the defendants on the merits. Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract.

DECISIONS OF THE LOWER COURTS

On 15 October 2019 Carr J declined to grant an interim anti-suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enka’s claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russia’s claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court.

To note, Andrew Baker also relied on the fact that Enka did not seek an interim order from an arbitral tribunal, and that it did participate to some extent in the Russian court proceedings.

Aggrieved by the decision, Enka applied to the Court of Appeal for permission to appeal from this decision. The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enka’s appeal and issued an anti-suit injunction restraining Chubb Russia from continuing the Russian proceedings. This appellate court swept the decision of Andrew Baker on the court that he made a wrong decision regarding the law governing the Arbitration Proceeding.

THE COURT OF APPEAL

The court also added that On forum non conveniens  grounds, the previous decision was wrong in principle. 

First, the choice of the seat of the arbitration is an agreement by the parties to submit to the jurisdiction of the courts of that seat. 

Secondly, the grant of an anti-suit injunction to restrain a breach or threatened breach of the arbitration agreement is an exercise of such powers.

The English Court as the court of the seat of the arbitration is for that reason the appropriate forum to exercise the jurisdiction to grant anti-suit relief. It is required to decide whether threatened or actual proceedings constitute a breach of the arbitration agreement, and if they do, to protect the integrity of the arbitration agreement by granting anti-suit relief unless there is a strong reason for not doing so. That is part of the supervisory jurisdiction of the court of the seat, to which the parties submit by choosing the place of the seat. There is no room for the application of any forum non conveniens consideration: either the forum conveniens question does not arise or it is automatically answered in favour of the English Court as the court of the seat.

Further, In order to decide whether to make an anti-suit injunction, the Court would need to decide whether the arbitration clause covered the dispute in question. This required a decision as to what law governed the arbitration agreement. This cannot be decided simply on the basis that the contract provides for the law governing the whole contract, because the arbitration agreement is considered a separate agreement whose governing law might be different (but usually is not). This is particularly possible where the seat of arbitration is different from the governing law, because that opens the way for the argument that it would make more sense for the arbitration agreement to be governed by the law of the place where the arbitration will be seated. Generally there is a presumption that the governing law of the arbitration agreement will be the same as the seat of arbitration.

Therefore, in light of these considerations, The Court of appeal concluded in this case that, even if the main contract was governed by Russian law, it made more sense for the arbitration agreement to be governed by the law of England, which the parties had chosen as the seat of arbitration and hence On the main issue of determining the proper law of the arbitration agreement, the Court of Appeal clarified the relevant principles. It is well established that the proper law of an arbitration agreement (“AA law”) may not be the same as the proper law of the main contract.

The court also clarified that the English Courts will exercise their “curial Jurisdiction” to grant anti-injunction based on the parties choice of London as an arbitration seat and regardless of the law governing the AA. The court also emphasized that the “anti-suit injunction jurisdiction is concerned to protect and enforce the integrity of arbitration agreement” and hence the role of the curial court is to “interrogate the substantive jurisdiction of the arbitral tribunal (or the putative or potential tribunal if none has been or is intended to be appointed) in determining whether the foreign proceedings are a breach of the agreement to arbitrate the dispute in question.” The court also pointed out that even in cases where the AA is governed by foreign law, consideration of foreign conveniens and comity should not be taken into account by English Courts in deciding the grant of anti-suit injunctions.

DECISION OF THE SUPREME COURT

In the landmark judgment given by Lord Hamblen and Lord Leggatt (with which Lord Kerr agreed), the Supreme Court confirmed that, under English common law, the search for the main contract law is governed by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament, see Article 3.1 and 4). However, Questions regarding the law governing arbitration agreements, on the other hand, are not covered by the Rome I Regulation and is excluded from the preview of Article 1(2)(e). The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely:

IS THERE AN EXPRESS CHOICE OF LAW?

If not, is there an implied choice of law?

If not, with what system of law does the arbitration agreement have its closest and most real connection?

The rules of English law on contractual interpretation will be applied by the English Court to decide the issue.

The court then relied on a previous decision where the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyd’s Rep 479, to set out, as clearly as possible, the relevant principles to determine the law governing the AA.

Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract.

The proper law is to be determined by undertaking a three-stage enquiry into (i) express choice, (ii) implied choice and (iii) the system of law with which the arbitration agreement has the closest and most real connection.

Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be “overwhelming”. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection.

Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties’ intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary.

The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract.

Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective.”

The principal rationale for treating an express choice of main contract law as indicative of a choice of AA law is because businessmen do not usually intend that their relationship should be governed by more than one system of law (see Sulamerica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 per Moore-Bick LJ at [11]).

The Court of Appeal stipulated that “this is a sensible starting point where there is no arbitration clause with a different seat; but it ceases to have any application where there is. In such cases, whatever the AA law, the parties have necessarily chosen their relationship to be governed in some respects by two systems of law, namely the curial law and the main contract law” (paragraph 95, emphasis added). Overall, as emphasised by Lord Neuberger in Sulamerica at [51], determining the proper law of the arbitration agreement was in each case a matter of contractual interpretation.

Applying these principles set above, the Court of Appeal found that the AA law in the Contract was governed by English law. Whilst the governing law of the Contract was Russian law, this was not by express choice. 

Further, In this case, there was no choice of law to govern the contract as a whole and the general rule would be applied in that situation so that the law of the seat of arbitration governs the arbitration agreement.

Therefore English law governed the arbitration agreement and the Court of Appeal›s basis for granting the anti-suit injunction remains sound.

The Supreme Court considered the possibility that, where the law governing the contract also governs the arbitration agreement, this would nullify the arbitration agreement fully or partially. The Court acknowledged the possibility that might justify a departure from the general rule in order to give effect to the principle that generally, contracts should be construed so as to avoid invalidity.

The Supreme Court also confirmed the Court of Appeal›s decision that it was appropriate for the court to consider whether to grant the anti-suit injunction, given that England was the seat of arbitration.

Interestingly, Lord Burrows and Lord Sales partially dissented from the decision of three judges in this case.

CONCLUSION

This is a remarkable judgment by the Supreme Court of England and is going to be an authority in the pro-arbitration regime. The court has clearly clarified the position and power of the English courts to exercise the curial law in order to grant anti-suit injunctions as a matter of relief. As pointed out by Lord Justice Popplewell in paragraph 109 that “the scope of the curial law is not limited to the exercise of purely procedural powers. It involves the curial court determining aspects of the substantive rights of the parties under their arbitration agreement by reference to the curial law.” Saying this, Lord Justice Popplewell has vested a responsibility on the draftsman to draft the AA more diligently. The law set out with regard to the governing law of the arbitration agreement will also be considered to be a remarkable authority and will be a helpful percent for complicated cases in future.

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Indian constitutional script in defining women’s presence in Parliament: A myth or a reality?

Women and men have almost equal population in India, but the former have a marginal presence in the Lok Sabha. When there is gender parity in Parliament, better policies can be formulated, which would ideally result in better governance. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics.

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Lapsing onto the tables since 1996, patriarchy wrenched the pages of women’s reservation; thence, the ensconced ‘political equality’ remains unlearnt.

Amidst the debate of gender inequality or equality, the notion of women’s rights, the feminists’ theories actualize; considering, if the male to female ratio can ensure equality if the Constitution of India under Article 14 envisages gender equality and equity in the country, so why the electoral representation of women in the parliament in still under scrutiny. With the changing dynamics in the country, women are given more rights as compared to the older times, but the rights concerning the reservation in parliament in still pending to be marked in the checklist i.e. the enactment of the Women Reservation Bill or the Constitution (108th Amendment Bill) 2008 by the Parliament of India. The script of the Constitution in defining equality has not been truly implemented in terms of “political equality” why, because, women are still considered weak and unqualified and are still expected to settle down and look after the kids. The women namely, Mrs. Pratibha Patil, Mrs. Sushma Swaraj, Ms. Jayalalitha, Mrs. Nirmala Sitharaman in Indian politics had pasted a huge impact on the minds of Indian Citizens and have proved to be worthy in governing the nations constituency has been negated by the houses of the parliament because, when we go on to talk about Women in Indian Politics, we hear very few names of female politicians because women are not ascertained with neither the equal representation nor with the equity representation in the parliament; Should we consider “patriarchy” or “ruling by men” is a tendency in the country?. As women are taught to be under the tree of the men who take major decisions in almost every sphere of life and society and are encouraged to voice their opinions. The female representation in Indian politics has come quite far over the years but has a very long way to go. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics and give them the right opportunity to hold positions of power and have a strong say in the decision-making process.

Fig. 1: Representation of Women in Rajya Sabha.

WOMEN’S REPRESENTATION IN INDIAN PARLIAMENT

The real decision-making process involves a maximum number of male parliamentarians even though the country experiences a minimal increase in every election in the representation of women candidates in politics. Although the majority of the political parties blossoms the papers by including women in the parliament by icing it with the term called “reservation to women”, but the actuality is hidden in regards to equal electoral representation to women in India. The dearth of women’s representation in the parliament has succinctly depleted the value of the nation’s glory which was also highlighted by India’s first woman President, Pratibha Patil, as she said, “There is simply no way our nation can progress if its women population is left behind.” But, this dearth is escaped through a fallacy called “lack of winning capacity of women”. The persuasion of this fallacy was been bereft in the 2019 general elections when 78 women politicians made their way into the Lok Sabha out of the 700 women participating candidates nearly counting to 14% of the total strength. Moreover, 25 women secured a seat in Rajya Sabha out of the total strength of 245, making up to 10% of the total. Although the representation of women kept on decreasing in Rajya Sabha and was noted to be highest in 2014 i.e. 12.7% (See, the table below).

Fig. 2: Representation of Women in 17th Lok Sabha, https://www.prsindia.org/parliamenttrack/vital-stats/profile-newly-elected-17th-lok-sabha

Effectuating the data stated, the inference of the bogus claims of the political parties have been still sustained, as, there are minimal numbers of female candidates in the parliament and the “winning capacity” is vaulted by the patriarchal domination despite the guaranteeing of equality rights by the Constitution of India.

ELECTORAL RIGHTS TO WOMEN IN INDIA

India’s acclaim of perpetrating the equal representation to women in the parliament is under a steel sky; the boundaries of the patriarchy are gripped. Albeit the 73rd amendment to our constitution provided for 33% of reservation to women and allocated the 46% share in the panchayats. But, the amendment is not ascertaining equality to women or women empowerment, rather a ‘jugaad’ of proxies for male members in their families.

The population of women and man are equal in India i.e. close to 50%, despite which the electoral representation of women is near to “diminishing” as the seat allocated to the states is based on the population in The Lok Sabha, howbeit, the representation of women is not even close to the percentage of the female population of the country. When there is complete representation in the Parliament, better policies can be formulated, which would ideally result in better governance. A study by The United Nations University World Institute for Development Economics Research’s suggested that the inclusion of women in the government resulted in the better economic growth of the nation. For a better representation of the women in the parliament, they need to get up and come to the forefront to contest elections and come to a position of power to bring about a change. But such an act would require awareness in the society regarding the importance of female representation and its effects on the overall efficiency in the governance in the country.

VERITY IN REPRESENTATION OF WOMEN IN PARLIAMENT OF INDIA

India experienced less number of women representation i.e. 10.9% in the parliament in the year 2012, accordingly to mitigate the minimal participation of women, the country empowered reservation quotas in 1994. The 73rd and 74th Constitutional Amendment Bill provided for reservation of 33% of seats in local governments, panchayats, and municipalities for women. Following this, in 1996 the Gowda’s government (United Front government) proposed the 81st Constitutional Amendment Bill which provided for one-third or 33% reservation of seats to women in the Lok Sabha and State Assemblies. However, the bill got lapsed and was tabled several times. Recently, in 2008 the 108th Constitutional Amendment Bill or Women Reservation Bill which also provided for 33% reservation to women in Lok Sabha and State Assemblies was tabled and is yet to become a law. The debate of women’s reservation is running since 1996 from the 81st Constitutional Amendment Bill till The Women’s Reservation Bill (108th amendment) in 2008 and yet it remained a ‘bill’ ready to form an ‘act’. The proposed bill has no reasons for its delay, but the hurdle of the social agenda of “democratization” in the country provides a controversy to the women’s reservation bill.

However, the bounds by the concepts of “democratization” was overturned in the 2019 Lok Sabha elections, when the “winning capacity of women” flourished as the winning ratio of women counted to 14% and whereas participating candidates were only 8%. Thence, the inference of winning capacity landed in the favor of women. Thus, the 2019 Lok Sabha Elections is justifiable in descrying reservations to the women in politics.

CONSTITUTIONAL RECOGNITION OF WOMEN IN INDIAN PARLIAMENT

The Constitution of India has guaranteed various equality/equity rights to women and also empowers a duty on every citizen under Article 51A to abolish the practices of “derogatory to the dignity of women”, further, provides for reservation of not less than one-third of the total number of seats in Panchayats and Municipalities to women under Article 243 D(3) and Article 243 T(3), also provides for a reservation to women which is not less than one-third of the total number of officers of chairperson in the Panchayat and Municipalities at each level.

The reality of women’s equal representation was outspoken in 1996 in form of the 81st Constitutional Amendment Bill which provided for one-third reservation of women in the Lok Sabha and State Assemblies but was sabotaged under the Indian Politics Tornado. Thus, empowering a barrier to the electoral representation of women thereby, allowing the feminist theories in actualizing their effect on the ideas of democracy and political equality in regards to women’s representation and not providing equality in the sphere of political efficacies. The women’s voice against equal representation in India was resulted positive as The High Court of Bombay decided in the favour of the reservation of seats for women in the election of Jalgaon Municipality which was provided under the Bombay Boroughs Act 1925. Still, the identification of women in politics remains depressed despite the provisions of gender equality in the Constitution.

Conclusion

The 33% or the one-third reservations of seats to women was been lapsing since 1996 and yet recently has been tabled in 2008 which also landed into a dearth of dirt. This gives rise to the concept of ‘inequalities on established equalities’ as the constitutional framework guarantees equality but the social inclination of the country sweeps the ‘political equality’ as, the implementation of women representation in Indian politics challenges the hidden “verity of democratization” and the bill of women representation in Indian politics succumbs itself under the myth of “verity of democratization”.

As the lapsing of the women’s reservation bill is actuated to the constitutional amendment which is controversial under the supporting and opposing pillars of democracy.

But, the bleak truth has never been catechized, even though the women representation is diminishing, yet, the interminable roles professed by the women politicians are beyond comparison to men’s political efficacious.

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Legally Speaking

SUSPICION, HOWEVER STRONG, CAN’T TAKE THE PLACE OF PROOF: SC

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It is really remarkable, refreshing, rejuvenating and reasonable to learn that the Supreme Court has just recently on February 12, 2021 in a latest, learned, landmark and laudable judgment titled State of Odisha vs. Banabihari Mohapatra in Special Leave Petition (Cri) No. 1156/2021 has reiterated that suspicion, however strong cannot take the place of proof. This was held so while upholding the acquittal in a murder case. All the Courts must always bear this in mind while dealing with criminal cases especially where the evidentiary value of proof matters most in deciding conviction or acquittal.

To start with, this commendable judgment authored by Justice Indira Banerjee for herself and Justice Hemant Gupta sets the ball rolling by first and foremost observing in para 1 that, “This Special Leave Petition filed by the State of Odisha is against a final judgment and order dated 2nd November, 2020 passed by the High Court of Orissa at Cuttack dismissing an application for leave to appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a judgment dated 14th January, 2020 passed by the Sessions Judge, Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents from charges under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC).”

To be sure, it is then stated in para 2 that, “Learned Counsel appearing on behalf of the Petitioner State forcefully contended that the High Court committed gross error in dismissing the application for leave to appeal filed by the Petitioner State on the ground of delay of 41 days, even though, there were serious charges against the Accused Respondents, including charges of murder under Section 302 of the IPC.”

Truth be told, it is then pointed out in para 3 that, “It is true that the appeal has, by the impugned judgment and order dated 2nd November 2020, been dismissed on the ground of delay of only 41 days in filing the CRLLP.”

While stating the ostensible, the Bench then acknowledges in para 4 that, “In a criminal case involving the serious offence of murder, the Courts do not ordinarily dismiss an appeal against a judgment and order of the Trial Court, whether of conviction or of acquittal, on the sole ground of some delay. This is to prevent miscarriage of justice.”

Simply put, it is then conceded in para 5 that, “However, in this case the application of the Petitioner State, for leave to appeal against the judgment and order of acquittal of the Respondent Accused, has been rejected on the ground of delay, but after considering the merits of application for leave to appeal.”

Needless to say, the Bench then points out in para 6 that, “We have considered the contentions of the State of Odisha being the petitioner before us. As per an FIR lodged with the police by one Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been working in the Home Guard, Chandabali and deputed at Chandabali Police Station.”

For the sake of information, the Bench then reveals in para 7 that, “According to the Complainant, the deceased used to move around with the first accused, Banabihari Mohapatra, who had an electric sales and repairing shop styled “Raja Electricals” at the Ferry Ghat area near the Chandabali bus stand.”

Be it noted, it is then made known in para 8 that, “In the FIR, it is alleged that the first accused came to the residence of the deceased at around 7.30 a.m. on 23rd June, 2014 and told the Complainant that the deceased had been lying motionless and still, not responding to calls. Later his younger son Luja alias Smruti Ranjan Mohapatra being the second Respondent also came and informed the complainant that the deceased was lying motionless.”

While continuing in a similar vein, the Bench then observes in para 9 that, “On hearing this, the Complainant along with her family members went to the Ferry Ghat near the Chandabali Bus Stand and found her husband lying dead inside a room which was locked, with a swollen belly and a deep burn injury on his right foot which was apparently caused by electric shock. The body of the deceased appeared black and blood was oozing out from the mouth and nostril of the deceased.”

It would be pertinent to mention that it is then disclosed in para 10 that, “In the FIR, the complainant has alleged that on 22nd June, 2016, the deceased had left the house to go to the house of a relative. He had been wearing a gold chain on his neck and two gold rings on his fingers, and had been carrying Rs.800 for purchase of a new pair of pants and shirt and Rs.5,000/- for purchase of articles for a marriage.”

It has to be borne in mind that para 11 then brings out that, “On making enquiries the complainant learnt that the deceased had not visited the house of the relative on that day. The complainant has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja alias Smruti Ranjan Mohapatra, being the Accused No.2, and other accomplices committed murder of her husband by applying electric shock to him after administering some poisonous substances to him.”

What also has to be noted is then stated in para 12 that, “The Sessions Judge Bhadrak framed charges against the Accused Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan Mohapatra alleging that, together they had intentionally caused the death of the deceased, thereby committing murder and had caused disappearance of evidence and thus been guilty of offences under Sections 302/201 read with Section 34 of the IPC.”

No doubt, the Bench then rightly mentions in para 13 that, “We have carefully gone through the judgment of the Sessions Judge, Bhadrak, holding that the prosecution had failed to prove the charges against the Accused Respondents or either of them under Section 302, or Section 201 read with Section 34 of the IPC, and acquitting them under Section 235(1) of the Cr.P.C.”

To put things in perspective, the Bench then elaborates in para 14 that, “The prosecution appears to have examined 9 witnesses. There are no eye witnesses to the incident. The deceased had apparently died in a room held by the Accused Respondent No.1. The Accused Respondents did not abscond. The Accused Respondents themselves informed the complainant that the deceased was lying still and motionless, not responding to calls.”

It is worth noting that it is then enunciated in para 15 that, “The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal.”

No less crucial is what is then mentioned in para 16 that, “The complaint lodged by the complainant is apparently based on suspicion. Since the Accused Respondents had informed the complainant that the deceased was lying still and motionless, not responding to calls and the body of the deceased was found at the premises of the Accused Respondent No.1, the complainant has assumed that the Accused Respondents killed the deceased.”

More damningly, the Bench then observes in para 17 that, “In evidence, the complainant said that the Accused Respondent No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased which he had not repaid even though the deceased had asked him to repay the amount. Significantly, there is no whisper in the FIR, of any loan taken by the Accused Respondent No.1 from the deceased. The reference to the alleged loan appears to be an afterthought, in an attempt to insinuate a motive for killing the deceased.”

It cannot be denied that it is then conceded in para 18 that, “The mere fact that the deceased was lying dead at a room held by the the Accused Respondent No.1 and that the Accused Respondents had informed the complainant that the deceased had been lying motionless and still and not responding to shouts and calls, does not establish that the Accused Respondents murdered the deceased. At the cost of repetition it is reiterated that the post mortem report suggests that the death could have been accidental.”

Significantly, the Bench then makes it clear in para 19 that, “We have perused the evidence of the nine Prosecution Witnesses, namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at the locality where dead body of the deceased was found, the fourth Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the fifth Prosecution Witness, Bailochan Bej, a Barber by profession who knew the complainant and the deceased as also the accused persons who resided in the Chandabali Police Station area, the sixth Prosecution Witness, Manmohan Sutar, an auto driver, the seventh Prosecution Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the Chandabali Police Station area of Bhadrak, the 8th Prosecution Witness, Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post mortem examination of the deceased and the ninth Prosecution Witness Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating Officer.”

We need to pay attention here that para 20 then states that, “Of the nine Prosecution Witnesses, three witnesses namely, the third Prosecution Witness, Ajay Sahoo, the fifth Prosecution Witness, Bailochan Bej and the seventh Prosecution Witness, Durga Charan Nayak were declared hostile by the Prosecution.”

It cannot be glossed over that it is then stated in para 21 that, “The third Prosecution Witness said that he had only seen the police shifting the dead body of the deceased and knew nothing more about the case. Nothing has emerged from his cross-examination by the Public Prosecutor. In his cross-examination by the defence, he said there was no electric connection in the house from which the body of the deceased was brought out. He even said that the Accused Respondents did not own any shop dealing with electric appliances. No credence can be given to this witness.”

It also cannot be glossed over that para 22 then reveals that, “The fifth Prosecution Witness, Bailochan Bej, denied knowledge of the case. He said that the police had not examined him, nor recorded any statement made by him. In cross-examination by the prosecution, he only said that he had a saloon at Chandabali Police Station, Bhadrak. He categorically denied having made the statements attributed to him by the police.”

What deserves mentioning here is that it is then stated in para 23 that, “The seventh Prosecution Witness, Durga Charan Nayak only said that he had seen the body of the deceased in the rented place near the Chandabali bus stand with bleeding injury on his right leg and blood oozing from his mouth and nostrils. He said he did not know how the deceased suffered the injury or died. Nothing significant has emerged from his cross-examination by the Public Prosecutor.”

Same is true of para 24 which then states that, “The sixth Prosecution Witness, Manmohan Sutar deposed that he knew the informant, the deceased as also the Accused Respondents. In a nutshell, he only confirmed that the dead body was in the shop of the Accused Respondents in Home Guard uniform. Inquest of the body was conducted in his presence. He identified his signature in the Inquest Report. He also said he had noticed a bleeding injury in the right foot of the deceased and blood oozing from the mouth and nostrils.”

It is extremely relevant to note that para 25 then brings out that, “All the three witnesses related to the deceased, that is the second Prosecution Witness, being the wife of the deceased, the first Prosecution Witness, being the younger brother of the deceased and the fourth Prosecution Witness, being the sister of the deceased have more or less reiterated what has been stated in the FIR with embellishments. There are, however, apparent inconsistencies, inaccuracies and inherent improbabilities in the statements of these witnesses.”

Of course, it is then elucidated in para 26 that, “These three witnesses deposed that they suspected that the accused Respondents had killed the deceased as the deceased was asking the Accused Respondents to repay Rs.20,000/- which the deceased had advanced to the Accused Respondents by way of loan. However, as observed above, there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution Witness.”

Adding more to it, the Bench then puts forth in para 27 that, “That apart, the first and fourth Prosecution Witnesses have admitted in cross-examination that they did not have first hand knowledge of the loan alleged to be advanced by the deceased to the Accused Respondent No.1. The first Prosecution Witness said that the complainant (PW2) had told him that the Accused Respondent No.1 had not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent said she had heard about the loan from her deceased brother. Though she said that the loan was given to the Accused Respondent No.1 at the time of his daughter’s marriage she could not say how long ago the loan was given. She could not even tell the approximate date or year of marriage of the Accused Respondent No.1’s daughter.”

Furthermore, it is then also observed in para 28 that, “From the evidence of the first and the second Prosecution Witnesses it transpires that the deceased had left his house at around 10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection with his Aunt’s daughter’s marriage. He was wearing a gold chain and two gold rings and carried Rs.800/- with him for buying a pair of trousers and shirt and Rs.5000/- for articles for the marriage. Enquiries, however, revealed that he had not gone to his Aunt’s house. It is, however, difficult to understand why the deceased should have been wearing his home guard uniform if he were going to visit his Aunt in connection with the marriage of his Aunt’s daughter. There is evidence to show that the deceased was found in his home guard uniform. The relevance of the plan of the deceased to go to his Aunt’s house or his plan to buy clothes etc. is also not clear. This is in no way linked to the incident of death of the deceased. Prosecution has failed to show a link between the proposed visit of the deceased to his Aunt’s house with the guilt, if any, of the Accused Respondents.”

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Quite forthrightly, the Bench then holds in para 29 that, “The evidence of the first Prosecution Witness Dhanjaya Tadu, brother of the deceased, that he had found the motor cycle of the deceased in front of the shop of the accused persons on the evening of the 22nd June 2014, is difficult to accept. He said he had asked the second accused about whereabouts of his brother to which the second accused had expressed ignorance, but on the next day, the second Accused Respondent and his father informed them that his brother was lying senseless. It seems rather unnatural that this witness, who was the brother of the deceased, should have chosen not to make any inquiry either in the police station or in the neighbourhood, even after seeing the motor cycle of the deceased in front of the shop, and after being told his brother was not in the shop. No attempt was made to look for the deceased even though he did not return home all night.”

What’s more, it is then stated in para 30 that, “The eighth Prosecution Witness, Dr. Bhisma Parida, who had at the time of death of the deceased been posted as Medical Officer at CHC Chandabali and had conducted the autopsy/post mortem examination of the deceased at around 1.00 p.m. on 24th June 2014, deposed that the deceased died due to electrical injury, suffered within 24 hours of the autopsy. The stomach of the deceased was full of food particles including meat and there was smell of alcohol. The deceased had been intoxicated with alcohol. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. This witness was of the opinion that the death may have been accidental or homicidal, but not suicidal.”

Crucially, it is then pointed out in para 31 that, “Nothing significant has emerged from the oral evidence of the ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer, to establish the guilt of the Accused Respondents. She only stated that the fifth Prosecution Witness had in course of examination stated before her that the first Accused Respondent and the deceased used one of the quarters where they regularly took tiffin and they were both present there on the date of the incident in Court. The fifth Prosecution Witness, however, denied having made any such statement to the Police and remained unshaken in cross-examination by the Public Prosecutor. He only admitted that he had a saloon in the area, but denied knowing the deceased, the Accused Respondents or the informant. The fifth Prosecution Witness said that the Police had neither examined him, nor recorded his statement.”

It is worth mentioning that para 32 then states that, “In her deposition, the Investigating Officer also said that some local persons had stated that the first Accused Respondent, Banabhihari had, out of animosity, killed the deceased by applying electric current. The oral evidence of the Investigating Officer in this regard is totally vague and devoid of particulars. The Investigating Officer (PW-9) had neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as witnesses.”

No wonder, it is then conceded in para 33 that, “The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. There is no infirmity in the judgment of the Trial Court, that calls for interference.”

While citing the relevant case law, it is then observed in para 34 that, “As held by this Court in Sadhu Saran Singh v. State of U.P. reported in 2016 (4) SCC 357, an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence.”

More crucially, the Bench then states in para 35 that, “Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused.”

While citing another relevant case law, it is then encapsulated in para 36 that, “In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:

“10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.

10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.””

No doubt, the Bench then hastens to add in para 37 that, “Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India.”

Most crucially, the Bench then makes it clear in no uncertain terms in para 38 that, “It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.”

No less crucial is what is then stated in para 39 that, “In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.”

Finally, it is then held in the last para 40 that, “For the reasons discussed above, we find no ground to interfere with the impugned judgment and order of the High Court under Article 136 of the Constitution of India. Consequently, the Special Leave Petition is dismissed. Pending application stands disposed of.”

To conclude, the long and short of this noteworthy judgment is that suspicion, however strong, cannot take the place of proof. This is the basic cardinal principle of criminal jurisprudence also. It has to be strictly implemented by all the courts in India. Para 38 is the most crucial para of this commendable judgment which has already been discussed above and which again repeats what is the bottom-line of this leading case that, “Suspicion, howsoever strong, cannot take the place of proof.” All courts must strictly abide by it! There should be certainly no deviation from this fundamental principle of law as followed in India and many other countries also! No denying or disputing it!

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